Citation Nr: 1806058 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-29 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sleep apnea, to include as secondary to service connected disabilities. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served in the United States Army from August 1970 to August 1973. The Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal, among other decorations, for this service. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision from the Denver, Colorado Regional Office (RO). In a written and signed statement from the Veteran, received in October 2017, the Veteran withdrew the perfected appeal of entitlement to an increased rating for service-connected residuals of prostate cancer. As the Veteran has withdrawn the appeal on this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed without prejudice. 38 U.S.C. §§ 7104, 7105(b)(2) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2017). In February 2017, the Veteran testified at a Videoconference hearing held in Denver, Colorado before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the Veteran's electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record reflects that further development is necessary. The Veteran seeks service connection for sleep apnea and specifically contends that his current sleep apnea is caused or aggravated by his service-connected disabilities, including PTSD and residuals of prostate cancer. In November 2013, the Veteran's wife, C.N., submitted a statement in support of the claim. C.N. stated that since 1995 the Veteran would stop breathing during the night and wake up. She added that the Veteran snored badly. In March 2014, the Veteran underwent a compensation and pension examination to determine the etiology of any sleep apnea. The VA examiner indicated the Veteran had a current diagnosis of sleep apnea. The VA examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of his service-connected prostate cancer. The rationale provided was that there was no medical causal relationship between sleep apnea and prostate cancer. The examiner added that both PTSD and sleep apnea can manifest themselves as insomnia or sleep troubles. During his February 2017 Board hearing, the Veteran testified that while in Vietnam and since returning, he has had trouble with sleeping. Specifically, the Veteran reported waking up during the night trying to catch his breath, sometimes screaming. The Board finds the current record is inadequate to make a fully-informed decision. Specifically, the March 2014 VA examiner's opinion is inadequate because it failed to provide adequate rationale for its conclusion. As such, the Board finds that a new examination is necessary to determine the etiology of the Veteran's currently diagnosed sleep apnea. See Barr, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records after October 2017 with the Veteran's electronic claims file. 2. After completion of the above-specified development. Obtain an addendum medical opinion. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary The examiner is asked to provide the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the current sleep apnea had onset in service or is etiologically directly related to active service? The examiner must discuss the Veteran's reports of sleeping difficulties and snoring while in Vietnam and since returning. The examiner must also discuss the November 2013 statement from the Veteran's wife. b) Is it at least as likely as not (50 percent probability or greater) that the current sleep apnea is caused by the Veteran's service-connected disabilities, including prostate cancer and PTSD? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that the sleep apnea is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, including prostate cancer and PTSD? If the VA examiner opines that the sleep apnea is aggravated by the prostate cancer or the PTSD, he/she should indicate the degree of disability before aggravation and the current degree of disability. A rationale should be given for all opinions and conclusions rendered. 5. After completion of the above and compliance with the requested actions has been ensured, readjudicate the appeal in light of all the evidence of record. If the determination remains adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).